THE RIGHT OF ACCESS

TO PUBLIC INFORMATION

MONOGRAPHIC REPORT
March 2012
THE RIGHT OF
ACCESS TO
PUBLIC
INFORMATION
Síndic de Greuges de Catalunya

1st Edition: March 2012

The right of access to public information. March 2012
Layout: Síndic de Greuges

Printed in recycled paper

Original design: America Sanchez

Cover picture: © Síndic de Greuges
GENERAL INDEX

1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2. REGULATION OF THE RIGHT OF ACCESS TO PUBLIC INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2.1. BRIEF REMARKS ON COMPARATIVE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.1.1. European Union Regulation and case law of the Court of Justice of the European Union . . . . . . 7
2.1.2. Council of Europe Convention on Access to Official Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1.3. Regulation in other countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2.2. REGULATION OF THE RIGHT OF ACCESS TO INFORMATION IN SPAIN AND CATALONIA . . . . . . . . . 12

2.2.1. Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.2.2. Catalonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

3. THE RIGHT OF ACCESS TO PUBLIC INFORMATION AND INTERVENTIONS BY THE CATALAN

OMBUDSMAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.1. EXAMPLES OF THE COMPLAINTS RECEIVED BY THE CATALAN OMBUDSMAN REGARDING
THE RIGHT OF ACCESS OF INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.2. THE CODE OF BEST ADMINISTRATIVE PRACTICES AND THE RIGHT OF ACCESS TO INFORMATION . . . . 19

4. SCOPE AND CONTENT OF THE RIGHT OF ACCESS TO PUBLIC INFORMATION:

CATALAN OMBUDSMAN’S CONSIDERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.1. THE NEED FOR A NEW REGULATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.2. CONFIGURATION OF THE RIGHT OF ACCESS TO INFORMATION: SPECIFIC ITEMS
TO BE REGULATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.2.1. Legal character of the right to access public information as a preliminary matter . . . . . . . . . . . 23
4.2.2. Active and passive legitimization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.2.3. Concept of the public information that must be accessible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.2.4. Procedure for access: term, silence, grounded refusal and appeals process . . . . . . . . . . . . . . . . . 28
4.2.5. Exceptions to the right of access: Proportionality principle and effective damage in the
application of exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.2.6. Conflict of rights and weighting: access and privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

5. CONCLUSIONS AND RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

5.1. CONCLUSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5.2. RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
1. INTRODUCTION
The right of access to public information has
a two-fold nature. From the general interest
standpoint, it is an instrument for the democratic
control of public institutions. On a more
individual level, the level of the person accessing
information, it has intrinsic value, in the sense of
its impact on citizen-government relations.
With regard to the workings of institutions in
democratic society, the right to information is
an instrument to make effective the principles
of transparency and accountability in public
administration activity, while also being a
requisite for the participation of citizens in
management of public affairs and decision-
making processes of public administrations.
The way in which this right is guaranteed in
each legal code serves as an important –though
not the only– means of measuring the level of
transparency achieved by the public powers in a
given society. The right to informed participation,
based on prior knowledge and analysis of public
information, must allow citizens to take an
active stance on the Administration’s actions
and decisions, participate in public authorities’
decision-making processes and make it possible
for citizens to hold administrations accountable
in everything they do.
The private or individual facet of the right of
access to public information is found in allowing
persons to access the information that could be
of interest to them within the realm of their
specific interests. The growing overlap of public
authorities’ activity into the daily affairs of
private individuals (citizens, but also companies,
organizations and associations of different
profiles and purposes) means that there is a
common personal or individual interest in
attaining information on the activities of public
powers that affect them individually or
collectively.
Thus, regulation of the right of access to
public information must protect general
interest in access, as a democratic check on
5
public powers, and private interest in
obtaining information on actions that
specifically affect a given citizen or organization.
Along these lines, the Síndic de Greuges’s
(hereafter Catalan Ombudsman) record of
interventions on the right of access to public
information has made apparent the difficulties
in resolving conflicts that citizens encounter in
a legal framework that regulates this matter
only partially and heterogeneously. The absence
of a comprehensive code that regulates the
procedure for access to public information, the
exceptions and mechanisms for the protection
of this right, and a response period that does
not undermine its effectiveness, among other
considerations, more in line with the options
adopted in our judiciary environment, is a
shortcoming that must be redressed.
In times such as the present, when citizens
are facing cutbacks in public spending which
affect the configuration of services they
receive from public administrations,
availability to all information on the decisions
made should be of the highest priority, for the
development of informed opinion. Regulations
that guarantee transparency, accountability
and access to information held by the
administrations is one of the claims put forth
by the 15-M movement.
Over the course of the previous legislature, the
Spanish government presented two draft bills
for the regulation of the right of access to
public information, but they met with little
success. The Popular Party group also
presented in the Spanish Parliament a private
bill on transparency, access to public
information and good governance. In the same
vein, in his inaugural address, the current
President of the Spanish government
announced the presentation of a law on
transparency, good governance and access to
public information. On another front, Catalan
members of parliament have established a
joint committee charged with developing a
6 INTRODUCTION
private bill on access to information, which is
beginning its work at the same time this
report is being written.
Beyond the need for effective legal instruments,
the Catalan Ombudsman’s experience in the
defense of the right to access information has
shown a certain resistance on the part of our
administrations to facilitating access to
anyone seeking it, and disclosing information
in an understandable way.
In addition to legally strengthening content
of the right of access to public information
and the mechanisms to exercise it, an
educational effort must also be aimed at
citizens, for them to know and use the right,
and also among public servants, for them to
gain awareness that the right to public
information is a tool of democratic quality and
a right of citizens, only conditioned by legally-
determined limits. In administrative culture,
access to public information must be perceived
as the general rule, and restriction or secret as
the exception.
To do so, public administrations must evolve
from cultural and regulatory tenets, according
to which citizens demand information and the
administration provides it within a framework
of established regulations and procedures, to a
situation in which administrations take the
initiative and disclose the updated information
and make it immediately available to citizens.
Such an evolution would imply a drop in the
volume of specific information requested, as
there would be a significant body of
information already available to the general
public.
As background to this report, the “Conference
on Access to Public Infor mation:
Advancements in Transparency”, held by the
Catalan Ombudsman on May 13-14, 2010,
bears mentioning. The conference became a
forum for thought on these two aspects, of
utmost priority for the functioning of
democratic societies: access to public
infor mat ion and t ransparenc y in
administrative activity.
The conference benef ited from the
participation of academics in this field,
representatives of committees set up to
guarantee access to information, data
protection agencies, the Spanish and Catalan
administrations, and non-governmental
organizations and associations committed to
promoting greater transparency in public
activity, consolidation of the right to access
and the use of open technological standards
and platforms in public institutions.
The conclusions reached over these sessions,
together with those born out of the
institution’s experience with the issues
brought up by individuals in this field, have
provided much of the content of this report.
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
2. REGULATION OF THE RIGHT OF ACCESS TO
PUBLIC INFORMATION
2.1. Brief remarks on comparative law
2.1.1. European Union Regulation and
case law of the Court of Justice of the
European Union
On one hand, citizens’ right to access information
in the power of European Union (EU) institutions
is expressly recognized in Article 255 of the
Treaty establishing the European Community,
though with the entry into force of the Treaty of
Lisbon, reference must be made to Article 15,
section three, of the Consolidated Version of the
Treaty on the Functioning of the European
Union developed in Regulations 1049/2001, of
May 30, of the European Parliament and the
Council of Europe.
On another note, the Charter of Fundamental
Rights of the European Union specifically
guarantees “the right of every person to have
access to his or her file” (Art. 41) and the right of
access to EU institution documents (Art. 42).
In Regulation 1049/2001, the right to access is
closely linked to the principles of transparency,
democratic control over public powers and
participation. Further, it has a broad scope,
including even preliminary and internal
documents, as opposed to the models of many
states, which exclude access to provisional
documents and drafts. Regulation 1049/2001
also regulates the filing of applications through
an expedient procedure (15 days to resolve, with
a “silence signifies refusal” provision) and the
possibility to file a confirmatory application
asking the institution to reconsider its position.
As for the limitations to access, Article 4 of the
Regulation makes reference to public interest
as regards: public security, defense and
military matters, international relations, or
the financial, monetary or economic policy of
the Community or a Member State. Privacy
and the integrity of the individual are also
grounds for refusal. Finally, for certain cases,
7
exception to access is applicable only if there
is an overriding public interest in disclosure.
As will be shown later, these conditions –with
special reference to overriding public interest,
as a modulation of exceptions to access–
coincide by and large with the options adopted
by the rules of certain member states of the
European Union and with that established by
the Council of Europe Convention on Access to
Official Documents.
The right of access to information in the power
of European institutions has also been
interpreted in the case law of the Court of Justice
of the European Union (CJEU). The Court has
found that Regulation 1049/2001 is meant to
promote best administrative practices and
guarantee transparency, as an element of
democratic checks and balances, and from that
standpoint, restrictively interprets exceptions to
access. Along these lines, the Decision of the
General Court (European Union), of November 8,
2007, in Bavarian Lager Co. Ltd. vs. the European
Commission, has been deemed especially
relevant to understanding the relationship
between the right of access to information and
privacy. The judgment of the European Court of
Justice, Grand Chamber, of January 26, 2010, in
the case Internationaler Hilfsfonds vs. the
European Commission, establishes that the right
to access is linked to the democratic character of
European institutions and that exceptions to the
right of access must be restrictively interpreted.
It also bears mentioning that Regulation
1049/2001, on access to documents of the
European Parliament, the Council and the
Commission, has been in revision for some
years now, with a view to adapting it to the
experience achieved in its application,
initiatives that the European institutions
themselves have adopted in recent years to
favor transparency and access to information,
and also to incorporate the case law doctrine
of the CJEU in this realm. This process of
8 REGULATION OF THE RIGHT OF ACCESS TO INFORMATION
revision and presentation of proposals for
modification was still underway at the time
this report was written.
At present, there is no rule equivalent to
Regulation 1049/2011 within community law
and applicable to member states, that aims to
harmonize internal legal codes in the realm of
access to information, at least not of a general
scope, although there are directives that
regulate access to information in state
administrations’ power regarding specific
subject matters, especially the environment.
Thus, Directive 2003/4/CE, of January 28, on
public access to environmental information,
specifically regulates the exercise of this right,
establishing the exclusions and specific access
procedure. Its implementation into Spanish
law was achieved through Law 27/2006, of July
18, by which rights of access to information,
public participation and access to justice in
environmental affairs are regulated.
Also in the area of environmental information,
Directive 2004/35/CE, of April 21, on
environmental responsibility as regards
prevention and reparation of environmental
damage, states that citizens can ask the public
administration for the information it holds on
environmental damages and on prevention,
avoidance or repair measures of these damages.
The rule that implements this directive into
Spanish legislation is Law 26/2007, of October 23,
on environmental liability.
Directive 2003/98/CE of November 17, on the
reuse of information from the public sector, was
adopted to harness the potential of public sector
information, and overcome the barriers of a
fragmented market –as the information
generated by public bodies is of major interest
for companies when operating in their realms of
activity– and to contribute to economic growth
and the creation of employment. In that regard,
it is also of the general citizens’ interest, as an
element of transparency and guide for democratic
participation. This directive was implemented
into Spanish legislation by Law 37/2007, of
November 16, on the reuse of public sector
information.
In public contracting, Directive 2004/18/CE of
the European Parliament and the Council, of
March 31, 2004, on coordination of public
works, supplies and service contract
adjudication procedures, modified by
Regulation (EC) 1422/2007 of the Commission,
of December 4, also contains rules for access to
information and transparency. The
implementation rule is Law 30/2007, of October
30, on public sector contracts (now, Consolidated
text approved by royal legislative decree 3/2011,
of November 14).
Finally, Directive 2006/123/EC, of December 12,
on services of the internal market, recognizes
the right to quality of public services rendered
by electronic means, and to obtain information
on the service activities. Law 17/2009, of
November 23, on free access to service activities
and their exercise, partially incorporates this
directive on the state level, supplemented by
Law 25/2009, of December 22, for modification
of several laws to adapt them to Law 17/2009. In
Catalonia, Legislative Decree 3/2010, of October
5, adapts the rules to Directive 2006/123/EC
with the status of law.
2.1.2. Council of Europe Convention on
Access to Official Documents
The Council of Europe Convention on Access to
Official Documents, adopted by the Council of
Ministers of the Council on November 27, 2008
and open for signature by member states since
June 18, 2009, was inspired in practices and
experiences common to a number of member
states of the Council of Europe. Signature of this
convention (Spain has not signed it at present; it
is one of the few member states of the Council of
Europe that does not have a specific law on the
right of access to information), implies binding
submission to certain minimum standards for
the regulation of access to public information.
The Council of Europe defines this agreement
as the first international legal instrument that
recognizes, with a general scope and in a
binding manner, the right of access to documents
in possession of public entities. Its two-fold
value is noteworthy: on the one hand, from a
collective viewpoint, as a key element to
guarantee transparency and good governance
of public entities, strengthen the trust of citizens
in institutions and promote citizen participation;
and on the other, from an individual perspective,
it interprets access to information as essential
for personal development and exercise of a
person’s fundamental rights.
According to the Convention, a public
document is any recorded in any format that
is created or received by a public authority
and residing in its power. The Convention
determines minimums that member states
signing the agreement agree to respect in
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
regulation of the right of access to public
information. Some of the most relevant
aspects of its content are as follows:
• Guarantee the right of any person, without
any sort of discrimination and without having
to show any special interest, to access public
documents in the public authorities’ possession,
once criteria of the two categories have been
confirmed.
• Guarantee that the applications for access, and
access to documentation bear no cost, although
the applicant may have to cover the cost
generated by the service or the making of copies.
• Possibility to establish a limited list of
exceptions (Art. 3.1), subject to criteria of public
interest, as long as they are set down precisely in
law, are necessary in a democratic society and
are proportionate to the aim of protecting other
rights or legitimate interests.
• In line with the terms of many laws of Council
of Europe member states, the Convention has
also established that the principles of actual
harm and overriding public interest in access
must be applied, before denying access based on
the application of any of the limitations outlined
in Article 3.1 of the Convention. This means that
in the event that any of the limitations outlined
in the Convention were to apply, the
Administration must determine if access would
cause real harm to the right or interest protected
by the limitation, and determine whether there
is overriding public interest in disclosure, and its
proportion to the right or interest protected by
the limitation. Said evaluation must be made on
a case-by-case basis, and under the guiding
principle that access is the rule, and limitation
the exception.
• Insofar as the procedure for filing access
applications, it bears mentioning that, although
the Explanatory Report written by the Council
itself establishes that a prompt response to a
request is at the core of the right of access to
official documents, no fixed term for this
response is set.
• The reasons for refusal of an application must
be given, and the right of applicants to an
appeals or review process over this decision
guaranteed, prior to access to courts of justice or
an independent, impartial body.
In conclusion, two final matters must be noted
on this convention: it must necessarily be a
reference document when preparing drafts on
9
the regulation of the right of access to
information, although it has not yet been
ratified by Spain, and the regulation it
contains is of a minimum nature, so that if
member states –and legislative bodies of a
lower rank– ratify it, they may establish
regulations that offer greater protection of the
right of access to public information, but not
reduce it.
Later, when other aspects of the regulation of the
right to access are discussed, several references
will be made to the content of this convention.
2.1.3. Regulation in other countries
Following is a concise summary of the
regulation of the right of access to information
in the internal legislations of Spain’s peer
countries, some of which have longstanding,
highly consolidated information access
systems.
Such is the case of the United States (USA),
which since 1966 has had a law, the Freedom
of Information Act (FOIA, USA), which is one
of the first experiences in the regulation of
the right of access to information, and has
been a source of inspiration for the regulations
established later in other countries.
In the United States’ information access
model, the FOIA is based on the principles of
transparency and information, and sets out a
number of limitations that stem from concepts
of public safety and privacy protection.
Regulation of the right of access to public
information in the USA has evolved from an
initial “ownership” outlook on public
information to the recognition of the right to
access and its configuration as a necessary
element for democratic participation in
decision-making processes. Decisions of the
courts of justice have also promoted the
consolidation of a broad outlook on the right
of access and restrictive application of
disclosure limitations.
In Latin American countries, the ratification
of generous regulations has been significant,
with the implementation of the principle of
transparency, clearly inspired in the FOIA-
USA model. Such are the cases of Mexico’s
Federal Transparency and Access to Public-
Governmental Information Act, of June 11,
2002, and Peru’s Law 27806 on Transparency
and Access to Public Information, of August 2,
2002.
10 REGULATION OF THE RIGHT OF ACCESS TO INFORMATION
Ireland’s Freedom of Information Act (FOIA-
IRL) dates back to 1997, although significant
modifications were introduced in 2003, with the
exclusion of certain public bodies from its scope
of application and the implementation of fees to
be paid as a condition for access in certain cases.
Both measures have resulted in a reduced
number of applications for access to public
information and configuring a more restrictive
right of access.
The law establishes the general principle of the
right of access to information with a list of
exceptions, some of which are absolute in nature
and others subject to the test of actual harm to
the right protected by the limitation and the test
of overriding public interest in disclosure, with
regard to a possible damage to a right or public
or private interest that the limitation means to
protect. The FOIA-IRL also includes the obligation
to publish, with no special order needed, certain
public information for its general interest.
The public organization that receives an
information application must notify the applicant
that the request has been received, and resolve it
within 20 days.
In the case of Ireland, the office of Information
Commissioner established by the FOIA-IRL is
held by the same person appointed Irish
Ombudsman, although it must be noted that
these are two distinct figures, with different
resources and mechanisms for intervention. The
Information Commissioner’s decisions are
binding, and may be appealed in courts of law.
The alternative of creating a specific
commissioner as an independent authority with
whom citizens can lodge appeals if they are
denied access, has also been ratified by other
countries.
In the United Kingdom, the regulation is the
Freedom of Information Act of the year 2000
(FOIA-GB). It was ratified after the Irish model,
although it shares significant similarities.
This rule acknowledges the right of any person
to request information in the power of public
organizations or companies. It also contains
limitations to the obligation to disclose
information, some of which are absolute in
nature, while others are only applicable if
there is no prevailing public interest in
disclosure (overriding public interest test).
The maximum period in which the information
is to be provided is 20 working days; grounds
for any refusal must be given, and the applicant
informed of the procedures for appeal. The
law also creates the figure of an Information
Commissioner, whose decisions are binding
and can be appealed.
Outside the realm of Common Law, and as a
reference closer to our judiciary tradition, France
deserves consideration, with its Act 78-753, of
July 17, on various measures for improved
relations between the Civil Service and the
public and on various arrangements of an
administrative, social and fiscal nature. In
keeping with this law, anyone is entitled to
access administrative documents, which are
defined as those produced by the State, public
institutions or from public or private-law
organizations managing public law, in the
framework of the public service mission assigned
to them. Refusal of delivery must be made in
writing and the grounds explained. Information
on the channels for appeal must be explained.
The French model for information access was
developed in step with regulations on the right
to data privacy, and it was decided to create two
authorities to respectively protect each of these
rights, as is the case of Italy. Specifically, the
supervisory body of the right of access is the
Committee of Access to Administrative
Documents. It is in charge of seeing to the
respect of the freedom of access to administrative
documents and public archives, as well as all
matters referring to the reuse of public
information. It is compulsory to file a claim with
the Committee to initiate an appeal in judicial
review.
In Germany, the law regulating access to
information of the German federal government
is that of September 5, 2005. This law states that
everyone has access to the official information
of the federal government, and does not require
any special justification of interest. At the same
time, the law sets limits or exceptions to access,
mainly based on public interest (primarily any
affectation of the Administration’s operation),
protection of personal data and business and
industrial interests. The application of these
limits requires a weighting of the interests
protected by the Law in the specific case, with
relation to the access application.
Access to the information must be made
effective in the period of one month. The
supervisory body responsible for correct
compliance with the Law is the Federal
Commissioner for Freedom of Information, a
role taken by the Federal Commissioner for
Data Protection. The Commissioner may lodge
complaints with administration authorities if
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
they believe the administration is violating
the freedom of information law.
In Italy, access to public information is regulated
by Law 241/1990, of August 7, on access to
administrative documents. This law states that
access to administrative documents is a general
principle of administrative action to favor
participation, ensure impartiality and
transparency. This notwithstanding, it must be
borne in mind that this law only refers to
information that could be defined as
administrative documents (Art. 22.1.d. of the
Law), not merely information in the
Administration’s power. This way, the Law limits
access to those persons with a clear legal (direct,
concrete and currently existing) interest linked
to the document to which access is requested.
Therefore, it is a more restrictive approach, far
from what other systems have defined as the
right of access to public information.
As with other special traits of this rule, it is
important to note that the applicant must justify
their request for access. The “silence-signifies-
refusal” provision comes into effect thirty days
after the demand application, and the decision
refusing the application must be based on one of
the limitations contained in the Law. Decisions
can be appealed by judicial review (to the
Regional Administrative Court and, for appeals
against its judgments, the Council of State).
There is a body that supervises the right of
access (Commission for Access) separate from
the independent body charged with data
protection (Garante for the Protection of Personal
Data) with a monitoring role over the compliance
with the Law and proposal for regulatory
modifications.
Finally, and outside the realm of the British/
American and continental traditions, reference
must be made to Slovenia, whose Information
Commissioner took part in the Conference on
Access to Public Information, held by the
Catalan Ombudsman on May 13-14, 2010.
The right of access to public information is
specifically taken up in the Slovenian
Constitution (art. 39). The constitutional
guarantee of access has been developed by
the Access to Public Information Act, of March
13, 2003. The model implemented by this law
stands out for the broad scope of its subjects,
from the judiciary branch to contractors and
private companies providing public services
or conducting administrative duties. The
term for resolution of access applications is
20 working days, and the law stipulates 11
11
exceptions, including protection of privacy.
Some of these exceptions are absolute in
nature; others are subject to the test of
overriding public interest in disclosure. The
law also specifically stipulates the possibility
of partial access to the requested information.
The Slovenian Information Commissioner
Act, of November 30, 2005, assigns to this
independent organization the duties of
deciding on the claims related with access to
public information and those related with
personal data protection (Art. 2). Its decisions
on the appeals against information access
application refusals are binding, and any
infringement can lead to a fine being imposed
(Art. 15.2).
2.2. Regulation of the right of access to
information in Spain and Catalonia
2.2.1. Spain
The right of access to public information is
specifically recognized in Article 105.b of the
Spanish Constitution (SC). While it is true that
this constitutional provision does not refer to
all public information, but only indicates
citizens’ right of access to archives and
administrative records, and introduces general
limits to its exercise (on information that
affects safety and defense, investigation of
crimes and personal privacy), in any event, it
does imply a constitutional recognition of the
right of access, and is a mandate for lawmakers
to regulate the specific content.
Article 37 of Law 30/1992, of November 26, on
the legal system of public administrations and
common administrative procedure, in its basic
nature, recognizes and regulates the general
system of citizens’ rights of access to
documents that form part of a case file, and
are found in administrative archives, as long
as these case files are for proceedings
concluded by the date of the application.
Article 37 excludes the right to access to
documents containing data relative to
individuals’ privacy, and requires a legitimate
and direct interest to justify access to
documents of a personal nature. It also
determines that this right of access is limited
by reasons of public interest, third-party
interests more deserving of protection or
when it is established by law. In its Section 5,
it lists certain cases in which access is also
12 REGULATION OF THE RIGHT OF ACCESS TO INFORMATION
barred. Last, it states that access refusal
requires a grounded decision.
By and large, administrative doctrine
considers this regulatory provision insufficient
to regulate citizens’ rights to access
information in public administrations’ power,
as it limits access to only one specific part of
the information in administrations’ power
(that forming part of a concluded case file), is
vague in its establishment of limitations to
access, and does not contain the instruments
necessary to delimit the application of these
exceptions in terms analogous to those
established by other models (the harm and
overriding public interest test, or the case-
by-case consideration of compared rights or
interests). The doctrine also highlights the
lack of a specific procedure to request the
information, with a short response time and
an appeals mechanism against refusal
judgments.
In short, it is an incomplete regulation that
in no way guarantees the right of access to
public documents in a dimension comparable
to Spain’s peer countries and the parameters
of the Council of Europe Convention of June
18, 2009.
Further, it must be considered that this rule
dates back to 1992, and is therefore prior,
with few exceptions, to rules that regulate
access to public information in the
aforementioned cases. Along this line of
reasoning, it is a rule incorporated into the
law which regulates the legal and procedural
system of public administrations that has
been made obsolete by a social and political
reality that calls for more transparency in
public activities and regulation of the access
to public information that gives this right the
broadest possible content.
Article 35 of Law 30/1992, of November 26,
regulates citizens’ rights. Letter g contains
recognition of the right to attain information
and guidance on judiciary or technical
requisites imposed by the provisions in force
for projects, the actions or applications that
could be made. Nonetheless, to be exact, this
provision does not refer to the right of access
established in Article 105 of the Constitution,
but rather stipulates a right to receive
guidance on conducting relations with the
public administrations.
The same Article 35 (letters a and b) states,
only for those who hold interests in any
proceedings, the right to know the status of
the proceedings in which one is a stakeholder
at any time, or the right to identify the
authorities and personnel handling the
process.
As a rule of general scope on the right of
access to information, reference is also to be
made to Law 11/2007, of June 22, on citizens’
electronic access to public services, also of a
basic nature, which recognizes citizens’ right
to interact with public administrations using
electronic media, for the exercise of the
rights established in Article 35 of Law 30/1992,
and also to obtain information. Although
Law 11/2007, of June 22, establishes the right
to apply for and obtain information, it adds
no content to the substantive regulation of
this right or the procedure to exercise it.
Law 37/2007, of November 16, on the reuse of
public sector information, which incorporates
into our legal code Directive 2003/98/EC, of
November 17, 2003, does not modify the
system for access to administrative
documents, but recognizes the importance
and value of information generated from
public bodies for use by companies and
persons, with the consequent added value
for economic growth and the creation of jobs.
On a local level, mention must be made of
Article 18.1e of Law 7/1985, of April 2, which
regulates the framework for the local system,
and recognizes the rights of local residents
to be informed, after filing a reasoned
request, and to send applications to the
municipal administration with regard to all
municipal case files or documentation,
pursuant to the terms of Article 105 of the
EC. Article 69 obliges local councils to disclose
the most extensive information possible on
their activities, and Article 77 specifically
outlines the particular system for access of
elected officials to municipal information.
Sections 1 and 2 of Article 70 also refer to the
disclosure of territorial organization and
planning instruments, urban management
documents and town planning agreements.
Law 16/1985, on historic Spanish heritage,
regulates access and consultation of
documentary and bibliographic heritage. In
principle, documentary heritage is of free
consultation, with the exceptions referring
to classified materials and those containing
personal information. In any event,
administrative authorization must be
secured.
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
There are certain sectorial rules that have
also regulated access and disclosure of public
information. Among others, in the
environmental realm, the rules on the access
to public information can be found in the
implementing rules for directives 2003/4/EC
of the European Parliament and Council of
Europe, of January 28, on public access to
environmental information and 2004/35/EC,
of the European Parliament and Council of
Europe, of April 21, on environmental liability
with relation to prevention and reparation of
environmental damages. In section 2.1.1,
reference has been made to these rules and
the legal provisions they implement in the
Spanish legal code.
Last, reference is to be made to Law 30/2007,
of October 30, on public sector contracts. One
of the purposes of the Law is to increase
transparency in an area of administration
activity; public contracting, which can
generate situations of corruption and
malfeasance of public funds.
2.2.2. Catalonia
The Statute of Autonomy of Catalonia (SAC),
in the section devoted to the administration
of the Generalitat (Autonomous Catalan
Government), establishes in Article 71.4: “The
administration of the Generalitat, in keeping
with the principle of transparency, must
publish the information necessary for citizens
to evaluate its management.”
Law 26/2010, of August 3, on the legal system
of the public administrations of Catalonia,
ratified in the development of the competencies
that Article 159 attributes to the Generalitat
in matters regarding the legal system and
procedure of public Catalan administrations,
regulates in Articles 26 and 27 the right of
access to the administrative case files,
archives and records and, in essence, has not
made for any variation with regard to the
regulation contained in Article 37 of the
Spanish Law 30/1992, of November 26.
In this regard, it is worth mentioning that,
despite the time that has transpired between
one and the other, Law 26/2010, of August 3,
does not include a broad and contemporary
conception of the right of access to information,
in step with the configuration of this right in
other countries, nor does it resolve the aspects
specifically criticized by the doctrine as
regards Article 37 of Law 30/1992, of November
13
26. It must be noted, however, that this is a
rule that regulates different areas of
administrative activity, and its object is not to
regulate, specifically or comprehensively, the
right of access to public information.
Thus, it can be concluded that the right of
access to information continues to be handled
from a strictly procedural standpoint: access
to administrative case files, and not any case
files, but only those finalized by the date of
the application, or those in which the person
applying for access is a stakeholder. The Law,
therefore, does not resolve the need to regulate
the right of access and informative
transparency in a comprehensive manner.
Therefore, it must be understood that this
comprehensive resolution adapted to the
standards approved by other countries and
taken up in the Council of Europe Convention
of June 18, 2009 must await approval of the
draft bill now being prepared by the joint
parliamentary committee, which has been
referred to in the introduction to this report.
Law 26/2010 does not modify the maximum
period for notification of resolution in
administrative procedures, which in the
general system for administrative procedures
is three months. This term, which may be
suitable for the general administrative
procedures, is clearly excessive, given the
expediency required for the right of access to
information to be effective. This
notwithstanding, it is significant that the
Law establishes a regulatory development
process to establish the terms and conditions
in order for the right of access to be effective.
On a positive note, it can be stated that the
Law imposes on the administrations the
obligation to affirmatively publish information
on the administration itself, the services it
provides, administrative procedures, calls for
tenders, personnel and subsidies, and
mechanisms to appeal administrative
decisions.
Mention is deserved by Law 10/2001, of July
13, on archives and documents, which
recognizes the right of access to documents
held by the Administration with a much
broader outlook. As opposed to the rules on
the legal system and administrative procedure
(Laws 30/1992 and 26/2010), this rule
acknowledges the right of access by anyone;
it is not a requisite that the documents
applied for form part of a case file, and the
fact that a document is not present in an
14 REGULATION OF THE RIGHT OF ACCESS TO INFORMATION

As concerns the Catalan law on archives and

archive does not exclude it from public
documents, it should be stated that, though
consultation. The concept of public document
not a rule specifically created to regulate the
established in Article 6 is much more wide-
right of access to public information, it has
ranging than in the aforementioned laws –
much more advanced determinations. It may
though it is also linked to the requisite of a
be that its main shortcoming, from the
finalized administrative procedure– and
standpoint of access to information, is the
includes private persons and organizations that
fact that it is not a general, comprehensive
perform public duties, in relation to these
regulation of this right (its scope also covers
duties.
documentary management and preservation)
and the very limited use made with regard to
Law 10/2001 of July 13, also stipulates the
the exercise of this right. Furthermore, the
possibility of excluding from consultation
Catalan Ombudsman believes that it
certain documents, which is set aside once 30
constitutes, in some of its determinations, a
years have passed since the production of the
valuable precedent, with a regulation of the
document (50 years if it is a document with
right of access and administrative
information relative to a person’s privacy, or 25
transparency much closer to the standards of
years after their death). Nonetheless, it is worth
our peers than can be found in the judicial
noting that this law states that partial access
rules of the basic and Catalan administrations.
must be allowed to documents that contain
It is, therefore, a reference to be borne in
information that must be kept reserved, if this
mind when designing a specific and
preservation is guaranteed in consultation.
comprehensive regulation of the right of
access.
The term in which public document access
applications are to be resolved is two months
Law 29/2010, of August 3, on the use of
and the silence-signifies-refusal principle
electronic media in Catalonia’s public sector,
applies. Although this stands for an improvement
develops in this autonomous region the right
over the general administrative procedure
to interact with public administrations using
term, it must now be considered excessive as a
electronic media, in the framework of the
general term in which to resolve an application
basic regulations established in state Law
for access. Generally speaking, the process of
11/2007, of June 22, on citizens’ electronic
deciding to allow or refuse access hardly
access to public services.
justifies such a long term. On another note, it
must be remembered that, as already indicated,
It must also be highlighted that this law
the Council of Europe Convention, of June 18,
establishes the obligation for organizations
2009, though it does not set a maximum term,
that make up Catalonia’s public sector to
requires an expedient decision to be made,
disclose, through their websites, information
either as soon as possible or within reasonable
on every public body, the services they
time limits. Compared legislation also
provide, the procedures and rules applicable
establishes shorter terms to resolve access
to their activity, and any other information of
applications.
general interest for citizens. Further, the
information must be of high quality and kept
Law 10/2001, of July 13, also regulates the duties
updated. Article 10 stipulates local councils’
of the National Documentary Access, Evaluation
obligation to publish the minutes from plenary
and Selection Committee, which must, among
sessions on their website. This law also
other tasks, set criteria on the application of the
recognizes the rights of citizens to
regulations that govern access to public
communicate electronically with Catalan
documents and publish reports on the claims of
public administrations and access information
legal and private persons and organizations
on procedures in which they are stakeholders
that believe that their right of access to
(Art. 13).
documents has not been upheld. Decree 13/2008
of January 22, on the access, evaluation and
Article 43.e of the Consolidated Text of the
selection of documents, regulates a procedure
Municipal and Local Government of Catalonia
for persons who believe their rights of access
Law acknowledges the rights of local residents
to be infringed, and any organization
to receive information on municipal affairs,
competent to decide on document access
after filing a reasoned request, and Article
claims to be able to request a –non-binding–
164 establishes a unique system for access to
report from the National Documentary
municipal information by town or city
Access, Evaluation and Selection Committee.
councilors.
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
In terms of the provisions found in sectorial
legislation, mention is deserved, among others,
by rules that regulate the right of access to
information as well as administrations’
obligation to conduct a policy of active disclosure
of public information that is of interest to
citizens, such as the Consolidated Text of the
Town Planning Law, approved by Legislative
Decree 1/2005, of July 26, and Law 3/2007, of July
4, on public works, or Law 12/2007, of October 11,
on social services.
Though it does not form part of the Catalan
regulatory corpus, in July 2005 the document
Report on Good Governance and Administrative
Transparency was published. On December 21,
2004, the government of the Generalitat created
a task force devoted to matters of good
governance and administrative transparency,
15
from which this report was commissioned.
The task force was led by Mr. Anton Cañellas i
Balcells, who had held the office of Catalan
Ombudsman until that year.
The Report on Good Governance defined
transparency and good governance as “the set
of measures that an advanced society uses to
facilitate and make effective accountability,
through the evaluation of the work of
institutions, processes and practices that
determine how power is exercised, how
citizens participate in public decision-making
and how these decisions are made in
accordance with the general interest. The
Report on Good Governance discusses
principles and proposals that must guide the
actions of public administrations in the
different realms of Catalan government.
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
3. THE RIGHT OF ACCESS TO PUBLIC INFORMATION
AND INTERVENTIONS BY THE CATALAN OMBUDSMAN
3.1. Examples of the complaints received
by the Catalan Ombudsman regarding
the right of access to information
The Catalan Ombudsman, by virtue of this
office’s duty to defend the rights of persons
with respect to public administration actions,
directly witnesses the barriers and difficulties
that exist to suitably, and fully, access public
information, and consequently, provide
content to the fundamental right to
participation in public affairs, by persons on
an individual level or in organizations, as well
as by elected officials in their supervisory
role over the activities of government bodies.
This is a shortcoming that affects all levels of
the public administration, regardless of the
political party in power at any given time.
A significant part of the Catalan Ombudsman’s
activities, which has an impact across areas
of the institution’s interventions, has to do
with the lack of response to citizens’
applications and claims addressed to public
administrations. This lack of response may
have different manifestations, ranging from
silence, the total lack of response, to partial or
incomplete responses, or ungrounded or
insufficiently grounded responses.
This range of irregular situations also occurs
when what the applicant is seeking is,
specifically, access to given information in
an administration’s power, and they address
the Catalan Ombudsman because they are
not attaining it.
In these cases, the Catalan Ombudsman
must only judge if the alleged grounds are in
accordance with the terms of the regulations,
if the Administration has asked the applicant
for obligations or conditions that are without
legal coverage, or has extensively interpreted
the law in a manner not in keeping with its
spirit. The Catalan Ombudsman has handed
down decisions on a possible abusive use of
17
the right of access when the administration
has interpreted it thusly.
The most frequent sort of case arises when
the Administration refuses access to
information because the documents
requested contain personal information. It
cannot be denied that the protection of
privacy must act as a limit to disclosure and
access to public information. This
notwithstanding, this limit must not be
automatically applied only because identified
persons appear in the documents.
This report features a section specifically
devoted to this matter, but it may now be
said that the Catalan Ombudsman has stated
that the Administration must facilitate
consultation of public documentation. In
light of this consideration, if a consultation
affects privacy and is not legal, before
refusing it, the Administration must
determine whether partial access or
anonymous access, using the procedure of
dissociating data, or anonymization, would
make it possible to satisfy the access
application without violating the right to
personal information protection.
In some cases, the Catalan Ombudsman has
found that a violation of the right to personal
information protection could not be adduced
to refuse access, as there was no real
affectation of privacy, and therefore it was
necessary to facilitate access to all of the
requested information.
The Catalan Ombudsman has also observed
that there are some citizens who request
large amounts of information from the
Administration, or who demand information
that must be especially prepared to meet the
request, or who very frequently request
information, overloading the administrative
services especially in small municipalities or
public bodies with little staffing.
18 THE RIGHT OF ACCESS TO PUBLIC INFORMATION AND INTERVENTIONS BY THE CATALAN OMBUDSMAN
These information requests generate a large
workload for the organization receiving them,
which is probably not proportional to the
purposes to be achieved (although this is not for
the public administration to decide). In any
event, they have a negative impact on the
effectiveness and efficiency of public
administrations’ operation.
An excessive exercise of the right for access to
information, or applications that are clearly
unreasonable could form grounds for access
refusal. Still and all, in these cases, the Catalan
Ombudsman has reminded users and
administration that the burden of proof of a
situation of abuse that hinders the
administration’s activity should be borne by the
administration making the claim, as the courts
have ruled.
Special attention should be paid to the terms
of Article 37.7, of Law 30/1992, of November 26,
on the legal system for public administrations
and common administrative procedure, which
establish that the access to administrative
archives and records can not affect the
effectiveness of public administrations,
although this limitation on access to
information must necessarily be interpreted
in a restrictive manner, so as to not ignore
information applications that do not accurately
indicate what they wish to consult.
From the same perspective, the Catalan
Ombudsman has sought to highlight the
importance of the administrative archives
and records being correctly organized and
indexed, so as to facilitate consultation and
localization of the information to be obtained
in each case, as well as the role that could be
played by new technologies in facilitating the
organization and consultation of the archives
and records. Efficient organization of
administrative documents and archives
facilitates the task of active information
disclosure, as well as the research by citizens
wishing to access them.
In the same regard, the Council of Europe
Convention on the access to public documents
establishes that party states must apply the
necessary measures to, among other
requirements, manage their documents
efficiently so that they are easily accessible,
and apply clear rules on the preservation and
destruction of their documents (Art. 9, letters
d. and c.).
The access to public information from the
standpoint of the right to political participation
by elected officials has also been evaluated
by the Catalan Ombudsman, who has given
an opinion on the range of factors that affect
this right in order to fulfill the duties inherent
to their offices.
The task of democratic supervision attributed
to elected officials implies that their right of
access to public information have, in this
case, specific regulations, with a level of
protection that is higher than for citizens in
general.
On another note, the exceptions are outlined
more restrictively, and must also be
interpreted along these lines. Thus, when the
municipal government body has denied
information requested by councilors, on the
grounds of the protection of privacy, the
Catalan Ombudsman has asked that this
exception be tempered with the requirement
of councilors’ reservation obligation.
Thus, in the 2006 Annual Report to Parliament,
the Catalan Ombudsman stated that when a
local elected official applies for access to any
given documentation, although it can be
refused if it violates the constitutional right
to honor, personal or family privacy or
personal image, the right to privacy must
only prevail in cases in which access to data
that affect the privacy of a third party are
clearly unrelated to the political supervision
and monitoring duties. Even in cases in
which the right to privacy must prevail, the
proportionality principle dictates that there
be a provision of at least partial communication
of the documents, once the aspects affected
by this right are cleared.
These have been the main tenets developed
by the Catalan Ombudsman regarding the
right of access to information (in a succinctly
summarized overview, as a complete
compilation is not the object of this report).
The common denominator of these opinions,
and the best practice recommended by the
Catalan Ombudsman, is that the administration
can not demand justification of the purpose
for information consultation, or allege reasons
of political expediency to refuse access.
Further, there must be restr ictive
interpretation of the legally-established
grounds for denial.
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
3.2. The Code of Best Administrative
Practices and the right of access to
information
Based on the office’s experience and role
supervising Catalan public administrations, and
as a watchdog of maladministration, the Catalan
Ombudsman has deemed it opportune to develop
and present, for the consideration of all Catalan
public administrations, a code of best
administrative practices, approved by a ruling of
September 2, 2009.
This Code, inspired in the Code of Good
Administrative Behavior of the European
Ombudsman approved by the European
Parliament in 2001, aims to set certain basic
principles guiding the content that must
configure the right to good administration, and
is based on the recognition of the right to good
administration taken up in Article 30 of the
Statute of Autonomy of Catalonia and the duty to
monitor administrations’ guarantee of the right
to good administration that Law 24/2009, of
December 23, attributes to the Catalan
Ombudsman.
In the code, the principle of legality is the
keystone which sustains all the other seventeen
principles, and it is present in all of their
developments. Articulation of the seventeen
principles is necessarily generic in nature, and is
completed with a compilation of best practices,
derived from the decisions which, over the years,
the Catalan Ombudsman has sent to
administrations to guarantee good administration.
It is a compilation and a selection of practices
derived from specific cases, but formulated with a
general character to the degree in which they are
applicable in this way.
One of the principles taken up in this code is that
relative to access to information, publicity and
transparency. The Code includes a number of
recommendations that the Catalan Ombudsman
has made over time, and that are believed suitable
to help configure the right to good administration
in this specific realm. Following are some of the
headings of best practices taken up in the Code
regarding access to information and transparency.
a) Best practices on the right to access public
documentation
In the right of access to information, it has been
stated that there must be regulation of the
conditions of exercise and limits, and that these
limits should be interpreted in a restrictive
manner.
19
It is worth underscoring that the Administration
can not demand a justification of the purpose for
the application for information, and cannot allege
reasons of political expediency to refuse access.
Likewise, the Code recommends that when the
documents to be consulted affect the privacy of
third parties, an evaluation must be performed
on whether partial access to the documents, or
the dissociation of the identification data, make it
possible to satisfy the request without violating
the right to personal data protection.
b) Best information practices related with
processing an administrative case file
When it comes to the documentation contained
in an administrative case file, aside from
applying the provisions of Law 30/1992, of
November 26, emphasis must be placed on the
need to coordinate the administrations and
services intervening in a single procedure to
guarantee access to the complete information.
In the realm of administrative fines/disciplinary
procedures, the Catalan Ombudsman has
sought recognition of a specific legal status for
the claimant, distinct from that of stakeholder,
and as a balance to their position as collaborators
with the administration, as they inform it of
events that could presumably constitute legal
infringements. In any event, the claimant who
is not a legitimate stakeholder in the procedure
must be informed of the actions derived from
their complaint and its outcome.
c) Best practices in the rendering of
information services
The information on resources and services
offered by the administration to citizens, and
on the requisites to use them must be easily
accessible by means of several channels.
d) Best practices on publicity and
transparency
From the standpoint of transparency as a means
of active disclosure of public information, the
Catalan Ombudsman has issued opinions stating
that the memoranda and instructions with any
impact on citizens must be made public, and even
if they do not have the status of legal rules,
disseminate the criteria of interpretation of the
rules approved by the administration.
Publication of employment calls for personnel
and results of recruitment processes must also
be guaranteed.
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
4. SCOPE AND CONTENT OF THE RIGHT OF ACCESS
TO PUBLIC INFORMATION: CATALAN OMBUDSMAN’S
CONSIDERATIONS
4.1. The need for a new regulation
Previously, criticism of the basic regulation of
the right of access to information in Spain has
been outlined. The most questioned element is
that this regulation is clearly insufficient, with
a restrictive view of the right of access, distant
from the standards of comparative legislation.
The basic regulation of the right only refers to
the information contained in administrative
case files, and ignores all of the information in
the power of the administration that does not
form part of a given administrative case file.
The importance given to the condition of
stakeholder in the procedure and the need to
justify it to obtain information is a consequence
of this procedural approach. Another
consequence is the fact that the basic regulations
determine the requisites to access information
that citizens demand, but does not refer to the
initiative of the administration to disclose the
information that it possesses and that may be
useful for people and companies in keeping with
the modern and democratic conception of the
right of access to information.
Along those lines, the regulations of Article 37 of
Law 30/1992, of November 26, are based on a
conception in which access to information is
only a reaction to a citizen’s demand, to be
contrasted against –real or alleged– public
interest in preserving the secrecy of the
information, not a true right of citizens, or an
expression of the principle of transparency
which must govern the actions of public
administrations. This double-faceted content of
the right of access–individual right to obtain
information of personal interest and
manifestation of the principle of transparency,
as an instrument of democratic control– is not
present in the basic regulations of Law 30/1992.
In the 2004 Report to the Parliament of Catalonia,
it was stated that “we believe it necessary to
overcome the logic of the individualized
21
request for information and replace it with
the administrations’ prior willingness to
disseminate administrative information, and
make its activity more public and transparent,
through these new technologies”. In this regard,
it should be noted that for some time now public
administrations have been conducting a policy
of affirmatively publishing public information of
citizen interest, mainly by electronic media.
The expansion of the use of information and
communication technologies facilitates, without
a doubt, this task of proactive disclosure for
public information of citizen interest, and
provides tools for research, selection, and
dissemination of large amounts of information
at a relatively low cost.
This regulatory shortcoming was only partially
corrected by the law implementing the directive
on the reuse of public information and the
Spanish and Catalan laws that regulate the
relationships between citizens and
administrations by electronic channels, which
introduce for the first time the obligation of
administrations to disclose quality information
on the services they provide.
Furthermore, to the degree in which information
disclosure is, without a doubt, a requisite for
the full effectiveness of the transparency
principle and accountability in public affairs,
and to favor informed participation in public
decision-making processes, the Catalan
Ombudsman considers that a law that regulates
the right of access to public information must
also refer to the obligation to disclose
information of public interest. Moreover, it
should be remembered that intensive
informative disclosure would also reduce the
need for specific access applications.
One example of this is the provision of the
FOIA-GB, which obliges all public organizations
to have information disclosure mechanisms,
and the role that an independent authority in
information access could have as a facilitator
22 SCOPE AND CONTENT: CATALAN OMBUDSMAN’S CONSIDERATIONS
of criteria and protocols for disclosure of
public information (this was discussed by the
representative of the Information
Commissioner of that country at the May 2010
seminar).
In addition to the foregoing shortcomings,
there is the one discussed in paragraph 2.2.1,
to wit, the absence of a specific procedure to
obtain public information within a reasonable
response time, and the absence of mechanisms
to defend the exercise of this right, such as a
specific appeals system and the creation of an
independent body for protection of the right
to access in terms similar to those now
existing for the protection of personal data.
What is more, the regulations of exceptions to
the right of access have been established as a
simple list, without setting any application
criteria. This gap is especially significant in
the case of the protection of privacy, which
generates many of the access refusals and is
often applied abusively, based on an absolute
configuration of the right to privacy, as an
instrument to keep from providing public
information that should be accessible. In this
regard, the need to establish criteria to
harmonize application of both rights is
especially evident.
With regard to this issue, especially important
is the use, in comparative law, of mechanisms
such as the harm test and overriding public
interest in disclosure, and the proportionality
principle and the need to weight, case-by-
case, both rights to determine which must
prevail and with what scope. These matters
are specifically discussed in sections 4.2.5
and 4.2.6 of this report.
Aside from the basic regulations governing
the legal system for public administrations,
last of all, discussion must center on regulatory
dispersion as an element that impedes the
exercise of the right of access to information.
Aside from sectorial rules that regulate access
in specific areas of administrative activity,
there are, as was stated in section 2.2, other
rules that regulate specific aspects related
with the right to access.
In light of all these shortcomings, it can be
concluded that the right to access to public
information must be regulated with a unique
law, in such a way that all aspects of the right
are integrated, overcoming the gaps identified
and the dispersion of current legislation.
The option of a unique law that
comprehensively regulates the right of access
to public information was, on another note,
the model followed by the Council of Europe
Convention, and by the countries that have
sought to strengthen access to information in
the power of public administrations, as well
as the option chosen to regulate access to
information possessed by institutions of the
European Union, as previously discussed.
Finally, it also seems to be the option chosen
by Catalan lawmakers, as at the time this
report is written, a joint committee is working
in the Parliament of Catalonia to develop a
proposal for such a unique law.
As proof of this, several speakers at the
Conference on Access to Public Information,
held in May 2010, agreed in qualifying current
laws as insufficient and obsolete, and
expressed their desire for regulations adapted
to a modern conception of what transparency
must mean in the public administration and
its governing actions, comparable to the
model proposed by the Council of Europe
Convention. It is significant to note that
Spain is one of the few member states of the
European Union that does not yet have a
specific law to regulate access to information
possessed by public administrations.
Joining their plea for new regulations were
organizations of news and communication
media professionals, who see their efforts to
obtain public information that is objective,
true and current often come up against the
lack of legal instruments to achieve access,
and the reluctance to actively disclose
information of public interest, still deeply
rooted in administrative practice. In the
sa me ma n ner, non-gover n ment a l
organizations committed to transparency
and evaluation of public policies also call for
regulatory and cultural changes in access to
information.
It is within this context that the next section
shall offer an assessment of the elements
that the new regulation on the right of access
to public information should feature, in the
Catalan Ombudsman’s opinion.
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
4.2. Configuration of the right of the Supreme Court of March 30, 1999 and May
access to information: specific items to 19, 2003 are helpful.
be regulated
This section does not intend to make an
exhaustive list of the contents of the right of
access to information –a decision which,
furthermore, is competency of lawmakers–
but simply to outline, with a view to achieving
full recognition of this right and allowing
effective exercise of it, certain aspects
understood to form part of its most essential
configuration.
4.2.1. Legal character of the right to access
public information as a preliminary
matter
An initial matter that must be discussed is
whether the right of access to public information
is to be configured as a fundamental right, with
the specific guarantee and regulation
instruments that our legal system attaches to
these rights.
Article 105 of the SC, which recognizes citizens’
right of access to the archives and records of
the administration, is found within Title IV,
devoted to government and administration; in
other words far from the section on fundamental
rights. The Statute of Autonomy of Catalunya
regulates it as an obligation of the Autonomous
Government of Catalunya in the section devoted
to it, as if it were just another organizational
matter and, not the recognition of a right of the
people.
Therefore, although it is a right with constitutional
and statutory coverage, the fact that it does not
form part of the rights that the EC lists as
fundamental, implies that it can only be
considered as a fundamental right (this has been
the theory of part of the doctrine) if it is
understood that its configuration is derived from
direct association with some of the rights that do
have that condition: fundamentally, the right to
free movement and exchange of true information
(Art. 20.1. d of the EC) and the right to participation
in public affairs (Art. 23 of the EC).
Up to now, the position of the courts has been
contrary to recognizing the right of access to
public information as having the character of
fundamental, and has ruled that it is not
associated with the right to free movement
and exchange of true information of Article
20.1 d of the EC, nor does it form part of them.
To illustrate this posture, two rulings from
23
On another note, there are many rulings that
link the right of access to information of
Article 105 of the EC to the correct exercise of
the fundamental right to participation in
public affairs of Article 23.1, and the
importance of the right in Article 20.1.d as a
guarantee of the existence of free public
opinion, intrinsically linked to the political
pluralism inherent to a democratic state, but
without granting the right of access to public
information the status of fundamental right.
Examples can be found in Ruling 161/1988, of
September 20, of the Constitutional Court,
and the Interlocutory Order of the same court
of November 15, 2006, and the rulings of the
Supreme Court of November 14, 2000 and May
19, 2003.
Although the case law is unanimous in
interpreting that the right of access to
information held by administrations does not
form part of, and is not derived from, the
fundamental rights of Article 20.1.d of the SC, a
part, although not a majority, of the doctrine
has believed it necessary to give this right the
status of fundamental.
This view is essentially based on the belief that
there exists a direct, indissociable link between
access to public information and the
fundamental right to participation in public
affairs, to the degree in which it is not possible
to exercise the right recognized in Article 23.1
of the SC without having access to sufficient,
high-quality information, by citizens who may
exercise their right to participate directly as
well as by their political representatives. In this
way, by considering the right of access to
information as an instrument necessary to
make the fundamental right to participation a
reality, this direct connection would bring the
nature and rank of the right of access closer to
that of a fundamental right, despite not being
specifically configured as such by the drafters
of the Constitution.
The most widespread belief, coinciding with
the courts, holds that it is not a fundamental
right, although it is linked to the fundamental
rights of political participation and the freedom
of information.
In the Opening Statement of the Draft Bill on
Transparency and Access to Public
Information, presented by the previous
Spanish government on July 29, 2011, this
24 SCOPE AND CONTENT: CATALAN OMBUDSMAN’S CONSIDERATIONS
association is expressed in the following
terms: “The principle of publicity and the right
of access to public information are called to
strengthen democratic principles, while
opening and broadening the channels of
communication between citizens and those
charged with the administration of public
affairs. On another note, if transparency and
the right of access provide substance to
citizens’ ‘right to know’, it is also evident that
their effectiveness complements and reinforces
the fundamental right to freely receive
information found in article 20.1.d of the SC, a
right which underpins the very possibility of
existence of public opinion, an indissociable
element of the political pluralism inherent to
the Democratic state.”
In any event, beyond the specific debate on
the character of this right, the Catalan
Ombudsman believes that the legal regulation
of the right of access must provide the
instruments necessary to guarantee its effective
exercise with full guarantees, and to promote a
culture of informative transparency,
accountability and informed participation, as
essential democratic values. The fact that in the
Spanish and Catalan legal codes the right of
access to public information is not considered
as a fundamental right cannot justify restrictive
regulations with as few guarantees as the
current legislation, nor that it necessarily have
to be subjugated if confronted with other rights,
whether fundamental or not (specific discussion
on this matter is featured in section 4.2.5).
Furthermore, the fact that it is a legally
configured right, so that the constitutional and
statutory content leaves a broad decision-
making capacity for lawmakers to define the
limits, means that they must be especially
careful when setting the scope and instruments
for its exercise to not unnecessarily limit its
effectiveness. Therefore, although the law that
regulates the right of access may add additional
limitations to those established in Article 105 of
the SC, these limitations must have an objective
justification and be proportional to the intended
purpose.
A final reminder must be made on the
experience of other countries, treaties and
international conventions, and the legal
system of the European Union, as they provide
guidance sufficient to give the right of access
to information proper content, with a
configuration that is modern and adapted to
the requirements of democratic society, far
from the restrictive, partial and scattered
regulations now in force in our legal system
on this subject matter.
4.2.2. Active and passive legitimization
4.2.2.1. Active legitimization
Article 105 of the EC attributes the right of
access to citizens, a concept that could lead to
exclusion of persons who do not hold all the
rights of political participation, due to the
association of the right of access with the
right regulated in Article 23 of the SC.
Nevertheless, the Catalan Ombudsman believes
that despite the literal wording of Article 105,
the right of access to public information must
be recognized with the maximum possible
breadth. This means that anyone, regardless of
their condition, must be able to apply for
access to public information. Therefore, it
includes natural as well as corporate persons,
domestic and foreign. It should not be necessary
to accredit specific interest with regard to the
information requested, without prejudice to
this factor being relevant when it is necessary
to weight the interest in access with relation to
other rights or interests that could be affected
(section 4.2.6 of this report).
This way, in a new regulation of the right of
access, a basic principle must be that the
general rule be one of accessibility to
information, and that exclusions be regulated
by law, grounded on objective, not subjective
reasons, in a way that the person applying for
access can not be required to accredit personal
interest justifying their request, but rather,
what must be justified is the refusal, being
based on objective, legally outlined causes.
Further, this has clearly been the option taken
by the most modern laws on access to public
information (cases of the United Kingdom and
Slovenia, as indicated by representatives of the
respective commissioners at the May 2010
Conference) and specifically, the Council of
Europe Convention on access to Official
Documents of June 18, 2009 (Art. 2.1.) which
has already been identified as a key reference
when undertaking an ex novo regulation of
this right.
A matter to be specifically appraised is whether
a minor or disabled person can directly request
access to information, or if it must be done
through their legal guardian or custody holder.
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
Theoretically, in the absence of other specific
regulations, the terms of Article 30.e of Law
30/1992, of November 26, would apply. It
recognizes minors’ right to act before public
administrations in the terms dictated by civil
law whenever “their actions are allowed by the
administrative legal system”. Thus, it can be
inferred that the specific rule regulating the
right to access could establish the cases in which
a minor could hold the right of access and
exercise it directly.
It must be said that the Council of Europe
convention on access to Official Documents and
many of the rules that regulate this right in
other countries recognize the right to access in
the same breadth and without restrictions. For
that reason the Ombudsman believes that
recognition of minors’ right to access should be
at least equivalent to that established to authorize
treatment of personal data in Article 13.1 of the
regulations that develop Organic Law 15/1999, of
December 13, on personal data protection (over
14 years of age, unless the law requires assistance
of guardians or holders of custody).
4.2.2.2. Passive legitimization
As for the bodies that hold public information,
the Catalan Ombudsman also believes that an
attempt must be made to achieve the maximum
scope, in order for it to include all public
organizations, even public companies with
corporate structures.
a) The justice administration, and constitutional
and statutory bodies
The Catalan Ombudsman believes that a future
law on the access to information must include
in its scope of application the justice
administration, without prejudice to
establishing as an exception any impact on
privacy and, specifically, any information
whose disclosure could affect the conduct of
judicial proceedings and investigations or the
proper administration of justice. Likewise, this
exception should be subject to the same
limitations and the same restrictive application
criteria indicated in section 4.2.5 of this report.
As for the public information of all other
constitutional and statutory bodies, even those
making up the legislative branch, the Catalan
Ombudsman believes that, in light of the terms
of the Council of Europe convention, they should
be included within the scope of the law, at least
everything relative to the development of
administrative functions, although it remains
25
up to lawmakers whether to also include, within
access, information relative to the rest of their
activities. Once again, it would be necessary to
observe in the same terms applied to the rest of
public authorities, a system of exceptions to the
rights of access.
The Draft Bill on Transparency and Citizen
Access to Public Information of the Ministry of
the Presidency of 2009 subjects the procedure of
information access in the realm of the legislative
and judiciary branches, and other constitutional
bodies to their own internal organization and
procedural rules, though it also proposes that
certain provisions of the Draft Bill must be
common provisions. The private bill developed
by the Popular Party in the Spanish Parliament
excludes these bodies from the scope of
application of the law, and also refers back to
their rules of organization and operation.
On another note, the most recent bill presented
by the previous administration on July 29, 2011
states that the law is applicable to the public
information of the Spanish Parliament, the
Senate, the Constitutional Court and the General
Council of the Judiciary, as well as the Council of
State, the Spanish Ombudsman, the Court of
Auditors and analogous autonomous institutions,
with regard to their activities that are subject to
administrative law.
b) Contractors and private companies providing
services of general interest
In the case of private companies contracted by the
administration, and those that provide services
considered essential or of general interest, they
should also be subject to the obligations of
disclosure and access established by the rule,
though obviously in a manner restricted exclusively
to the information relative to the exercise of their
public duties or services, or in that which refers to
the provision of the essential service, not all of the
information they possess.
It must be borne in mind that in such cases,
determining what must be accessible among the
information that the subject holds could be
complex. Therefore, an effort would have to be
devoted to delimiting the information in possession
of private parties within the new regulations.
As stated in other ambits of the rights of
persons before public administrations, what
must be determinant in the application of the
tuitive rules and mechanisms of public law is
the exercise or provision of public service, not
the way in which the service is provided. In
26 SCOPE AND CONTENT: CATALAN OMBUDSMAN’S CONSIDERATIONS
this regard, a concept of citizens’ rights before
public activity focused on the subjective
aspects runs the risk of progressively voiding
itself of content as a result of the growing
presence of private subjects exercising or
collaborating in the provision of public services,
including certain essential services.
What should be relevant in the application of a
regulatory code on the right of access is that
the information refer to public activity,
understood in the broadest sense, regardless of
whether it is in possession of a public or private
subject. And if any information of public
relevance is not accessible, it must be for
objective, grounded reasons, because there is
an exception to access, not because of the body
or person that holds this information.
This approach is concordant with the terms of
the Council of Europe Convention, of June 18,
2009, which stipulates that natural or corporate
persons, to the degree in which they carry out
activities that involve public authority, are
subject to the determinations of the Convention
with regard to the public information they
possess (Art. 1.2 a, section 3). It also includes the
justice administration (Art. 1.2a, section 2)
though it also includes terms for exclusions
meant to protect the effective workings of the
judiciary branch and equality of the parties in
any proceedings (art. 3.1.i).
In the same vein, for private bodies exercising
public duties or working with public funds, their
inclusion is not a mandatory provision derived
from accession to the Convention, but rather is
left up to domestic lawmakers (Article 1.2b,
section 3).
With regard to this, the Explanatory Report
written by the Council of Europe states the
drafters of the Convention recognized there was
no common definition of these notions among
party states regarding what could be understood
as public function, to the effects of applicability
of the right of access, with notable differences
from one country to another, which made it
difficult to include a concept in the Convention
compatible with all of these concepts and the
tradition of each judiciary system. This is why
the inclusion of bodies or persons that exercise
public duties, and the very notion of public
duties or activities are decisions that the
Convention refers to domestic lawmakers.
In comparative law, the definition of the
subjects to whom the laws of access to public
information are applicable is not uniform.
There are laws with notable exceptions (some
of which, such as the FOIA-IRL, following the
reform of 2003 which, along with the charging
of fees for access, can only be considered as an
expression of lawmakers’ desire to restrict
access to public information overall) and others
with a remarkably broad scope, such as
Slovenia, which specifically includes the justice
administration and private government
contractors.
The Draft Bill of the law on transparency and
citizen access to public information prepared
by the Ministry of the Presidency in 2009
recognized the right of access to public
information “of all persons” with no need to
justify the application (Art. 4 of the Draft Bill).
This condition has been maintained in the
latest draft bill presented by this ministry on
July 29, 2011 and is also incorporated into the
private bill prepared by Popular Party
lawmakers in the Spanish Parliament.
As for the passive subject of the right to access
public information, the draft bill chose –correctly,
in the Catalan Ombudsman’s view–to follow an
objective criteria of delimitation, so that public
information subject to the right of access is
considered any in the power of bodies and
subjects which, even if they do not have the
condition of “public authority”, “render public
services or exercise administrative duties”, but
only when the information “has been generated
or obtained in the exercise of their public
activity”. The private bill being prepared by the
Popular Party in the Spanish Parliament
includes the same terms.
Although the Catalan Ombudsman takes a
positive view of this provision, in the
delimitation of the scope of application of the
right of access found in the draft bill, the
Ombudsman finds lacking the inclusion of
information held by private companies
providing essential or general interest services,
without prejudice to, in these cases, it being
necessary to set specific limitations, as long as
they are reasonable and justified, and are
based on the general rule of free access to
information related with a broad conception of
public activity.
The draft bill presented on July 29, 2011 includes
within its realm of application the public
information held by natural and corporate
persons, public or private, that provide public
services or exercise administrative duties.
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
4.2.3. Concept of the public information
that must be accessible
An assessment of the legislation in force on the
right of access to public information has revealed
that the basic laws are extremely restrictive
because they link access only to the public
information contained in an administrative case
file, which also must be finalized, unless the
applicant qualifies as a stakeholder in the
proceedings.
In the foregoing, it was also stated that what
must determine whether specific information is
subject to the regulation by right of access is its
link with public activity, in the broadest sense,
beyond who has drafted or received it, and it
being held by a public or private body. In this
regard, the idea of transparency and democratic
control over public activity requires this
extensive notion.
Another aspect relative to the type of information
that must be accessible, and that may generate
debate, is whether to include in the right of access
the information that refers to public actions and
decisions that are in the process of development,
and that must be expressly rewritten or prepared
following an application of access.
Concerning this matter, it must be stated that
although it seems logical to exclude from the
right of access unfinished documents, drafts not
yet in final document form, or the development of
information or documents “on demand”, it is
more debatable from a democratic transparency
and accountability standpoint that preparatory
reports and documents, the minutes of
deliberation meetings and internal memoranda
must be excluded due to the simple fact that they
are support or preparatory documents; in other
words, they are not in themselves manifestations
of a decision made, or the exercise of public duty
or activity, but rather documents of support or
preparation for this exercise of duty or
decision-making.
Within this concept, it must be noted that
promoting a view on the right of access
constrained to what could be called final
documents makes for a restriction of the right of
access that would not be justified or, at the least,
not as a general restriction for all cases.
Once again, it must be remembered on this point
that the limitations to access must be grounded,
and should be justifiable for objective reasons of
protection over other rights that could be
damaged by disclosure. Therefore, when
27
knowledge of information that is not definitive,
a report or preparatory memorandum could be
of public interest from the standpoint of
evaluating public activity, access to it should not
be excluded simply due to its condition as a
support, or provisional document, but rather,
only when –just as in the case of definitive
information– access could involve damage to
other rights or interests and exclusion is
necessary to protect them.
Based on this premise, attention must be
redirected to what the Council of Europe
Convention stated with regard to the limitations
of access to public information:
- They must be expressly, accurately established
by law.
- They must be necessary in a model of
democratic society.
- They must be proportional to the purpose of
protection intended with the exclusion.
This would not be the case of generalized,
imprecise exclusions of the right of access to
provisional or support documents, or access
restrictions not based on the content of the
information and the possible affectation of
third-party rights or concrete areas of public
activity that require confidentiality.
Pursuant to this approach, it is necessary to be
critical of the provision in Article 2.3 of the two
draft bills presented by the previous Ministry of
the Presidency, which exclude from the scope of
application all information of an auxiliary and
support nature for the exercise of public activity
that does not have official status and is not
meant to form part of a case file, as well as the
provision in the private bill presented by the
Popular Party (Art. 4) when it states that all
documents considered preparatory for activity
by administrative bodies are excluded from the
right of access.
That said, the federal German law on access to
public information, of September 5, 2005,
excludes notes and projects that do not form
part of a case file from access. It also excludes
information on decisions in the process of being
approved, though in this case, in a nuanced
manner: only to the extent in which premature
disclosure could interfere in the decision-
making process, and with the obligation to
inform the applicant of the procedure’s
conclusion, and therefore, the decision made
(Section 4 of the Law, under the heading
“Protection of the official decision-making
process”).
28 SCOPE AND CONTENT: CATALAN OMBUDSMAN’S CONSIDERATIONS
The Slovenian Freedom of Information Act
includes similar terms in its Article 6.1.9, which
states as an access exception, “Information (...)
in the process of being drawn up and is still
subject of consultation by the body, and the
disclosure of which would lead to
misunderstanding of its contents”.
In step with the aforementioned rules, the
Catalan Ombudsman believes that although the
exclusion of information to be published in the
short term, or that would have to be expressly
prepared for the applicant would be justified, in
the event of support and preparatory information
for administrative actions or decisions it would
only be justified in cases in which disclosure
could damage the public deliberation and
decision-making process so that the information
contained in preparatory documents may be of
public interest, and its exclusion is only justified
based on the damage that disclosure could
generate, and not in a generalized way.
Finally, it must be said that a law that attempts
to thoroughly regulate the right of access and
transparency in public administration activity
must also establish the obligation to disseminate
information relevant to private citizens,
companies and to the extent possible, list cases
in which disclosure would be mandatory, without
prejudice to the establishment for this matter of
sectorial rules that regulate the area.
In keeping with this idea, the Council of
Europe Convention on access to official
documents states that public authorities must
disclose public information for the purpose of
promoting transparency and efficiency of
administrations and facilitating citizens’
informed participation in matters of general
interest (Art. 10).
4.2.4. Procedure for access: term, silence,
grounded refusal and appeals process
Continuing the effort to define the essential
traits that should make up regulation of the right
of access to public information, there follows a
discussion on the need to regulate a specific
procedure that sets a framework for the exercise
of this right, and establish appeals and revision
mechanisms on rulings for application refusals.
One of the shortcomings unanimously criticized
in the current regulations is that they do not
describe a specific procedure by which to
resolve access applications with sufficient
expediency so as to not devoid this right of
content.
Thus, the general administrative procedure,
applicable by default given the lack of a specific
provision, and with a three-month term to
resolve and notify of the decision, is markedly
inadequate for the exercise of a right that
clearly requires a faster response that rarely
–in the vast majority of cases– presents a
complexity that justifies the application of
this term.
In the foregoing, it has been shown that a
significant number of regulations in Spain’s
peer countries have set a maximum term of
resolution of 15 calendar or 20 working days,
and the Council of Europe Convention on the
access to information calls for agile, expedient
response.
In the first draft bill of the Ministry of the
Presidency, this term is set in an intermediate
position. It sets a term of 30 calendar days as
a maximum to decide on the application,
although with the peculiar trait that, in order
for silence-implies-assent to apply, the
applicant must reiterate the application within
10 days from the conclusion of the term in
which the decision must be made, and the
silence will have no effect until 30 additional
days following confirmation of the application.
The private bill of the Popular Party calls for a
maximum term of 15 calendar days, and
repeats the provisions on the positive effects
of silence if the application is repeated.
Nonetheless, the draft bill presented by the
Ministry of the Presidency in July 2011 calls for
a maximum term of one month from the
reception of the application by the body
competent to decide, and silence implies refusal.
As for the implication of silence, if the general
rule must be that of access, and refusal must be
based on legally-established causes, it must be
understood that silence can only signify assent.
Confirming the application, in the terms of the
aforementioned draft bill, is an unjustified
burden for the citizen, especially considering
that the possibility to have an additional term of
30 days is already given, at the initiative of the
body that must provide the information, when
the volume or complexity of the information
make it impossible to comply with the general
term.
In conclusion, in order for the right of access
to information to be effective, a short period
in which to decide on the applications must be
set. In general, the Catalan Ombudsman
thinks it would be suitable to set it at 15 days,
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
without prejudice to the possibility of expanding
it by the same term, at the most, because of the
volume or complexity of the information
requested. The applicant must be notified of
this optional extension within five days after
filing the application, indicating the reasons
justifying, with relation to a specific request, an
extension of the regular term. The meaning of
silence must be assent, with no need for
additional or confirmatory actions.
The next section refers to the establishment of
exceptions to the general rule of access and
the criteria to apply them. It can be stated now
that refusal decisions must be grounded, and
supported by one of the exceptions to access
established in the law, taken from a closed list.
Another aspect that the law must determine is
if the access to information is to be in exchange
for any compensation.
On this matter, as previously stated, it must be
remembered that the Council of Europe
Convention determines that access should not
imply any cost for the person applying for it,
with the option of passing on the costs of the
services provided by the archives and museums,
or for the copies of the document in the format
they are delivered in.
The draft bill of the transparency and citizen
access to public information law developed by
the Ministry of the Presidency in 2009 calls for
free access to information in situ, without
prejudice to the specific legislation of archives,
libraries and museums, although making
photocopies and the conversion to formats other
than the original can be provided in exchange
for payment of an amount not to exceed their
costs. This provision is maintained in the draft
bill presented by the Ministry on July 29, 2011,
though it no longer refers to free in situ access of
the information.
The private bill prepared by the Popular Party
committee in the Spanish Congress also calls
for access to information being free of charge,
although specific legislation will be applicable
in the case of archives, libraries and museums.
The draft bill also includes the possibility of
charging fees per photocopy or format
conversion.
The Catalan Ombudsman’s position on this
matter is that it is legitimate for the regulation
of the right of access to establish the possibility
to require the applicant to assume the cost
generated by the making of photocopies of the
29
documents requested, although the fee must
have the limit of strictly covering the cost
generated by the making of copies, and in no
case have a deterrent or restrictive effect on
access.
When regulating an access to information
procedure, there must also be established a
system for review of the decisions denying
access, without prejudice to the right to address
courts of justice. Again in such case, it must be
noted that the procedure of revision in the
administrative channel must be reasonably
agile to avoid unnecessary delays. From this
standpoint, the process of revision in the
administrative channel could be that generally
established by Law 30/1992, though the
possibility of shortening decision times must be
examined.
As for the appeals channels, in the models of
Spain’s peer countries there has been a majority
trend toward creating an independent authority
with supervision over the right of access and
revision of the decisions taken by administrations
in this realm.
The Council of Europe Convention on Access to
Public Information also establishes the
obligation to regulate an agile review procedure,
prior to access to the courts or other independent
authority. The existence of an independent
authority is configured as an instrument of
additional protection of the right, which acts as
a guarantee of impartial review of the
application prior to judicial channels.
The models found in compared law are diverse,
and range from the establishment of a specific
authority in the field to the assignation of this
duty to an existing body, which could be the
Ombudsman.
For example, the cases of New Zealand and Peru,
which have given supervision competencies for
compliance with their Freedom of Information
Acts to the Ombudsman. Austria, Finland,
Romania and Sweden also enjoy an additional
right to petition their Ombudsmen. In Ireland,
the authority for information access is
independent from the authority over data
protection. That notwithstanding, as has already
been mentioned, at this time the same person
designated as Ombudsman has also been
appointed information commissioner. This is an
option expressly described in the FOIA-IRL.
Nonetheless, they are two organically and
functionally separate offices, and, contrary to
the recommendations of the Ombudsman, the
30 SCOPE AND CONTENT: CATALAN OMBUDSMAN’S CONSIDERATIONS
decisions of the Information Commissioner are
binding.
In the case of the United Kingdom, Slovenia or
Germany, the decision has been made to group
in the existing independent authority the
supervisory duties over the right of access to
information and data protection.
In favor of this second option, it is generally said
that it allows the conflicts between right of
access and data protection, which are the most
common cause for access refusal, to be resolved
by a single authority, regardless of who is making
the claim (application for information or owner
of data) in a manner that favors homogeneity of
criteria and prevents citizens’ confusion as could
occur if they had to choose between two bodies
when filing claims. Another advantage in
addition to these is the lower cost that comes
from concentrating the two roles in a single
body.
A disadvantage, and an argument in favor of
appointing two independent authorities, is the
risk that situations of imbalance and prevalence
of one right over another occur, especially when
one of the two rights has legal or constitutional
protection that is superior to the other and has a
tradition of judicial protection or application of
the protection legislation over an extended
period of time. From this standpoint, it has been
indicated that this risk is higher when one of the
two rights has only recently been regulated, and
has not yet been assumed in a consolidated
fashion, among civil servants who are to apply it
as well as the possible beneficiaries who can
claim it.
In any event, it is an option to be freely
adopted by the legislator, in which elements
of opportunity and economic cost, not just
technical matters, come into play.
In the realm of the Spanish administration,
the option prepared by the Ministry of the
Presidency in the first draft bill was to group
the functions of data protection and
information access in a single authority. To
the contrary, in the draft bill presented in July
2011, transparency promotion and protection
of the right of access to public information
was grouped into a single collegiate committee
ascribed to the Ministry of the Presidency.
The private bill presented by the Popular
Party group in the Spanish Parliament does
not call for an independent authority with
duties in the field of the right of access to
public information, but also determines that
when access has been refused to protect the
privacy of third parties and the applicant files
an administrative appeal for review, the body to
rule on the appeal must request a binding
report from the Spanish Data Protection Agency.
In the case of Catalonia, at the time this report
was written, it was not known whether plans
called for creation of an information access
authority and what the chosen option would be.
In any case, it is worth noting that the decision
made by Catalan legislators, in this
organizational option, would have to be
completely autonomous from that made by
Spanish lawmakers.
4.2.5. Exceptions to the right of access
Proportionality principle and effective
damage in the application of exceptions
All laws governing access to public information
include an indeterminate number of exceptions
to access, with a view to protecting other public
or private rights and interests, which could be
damaged with the access to or disclosure of the
information. As the rights do not have an
absolute scope in any case, it is perfectly
legitimate and desirable to establish limits to
their exercise for cases of conflict with other
rights or interests deserving of protection.
Nevertheless, it also bears mentioning that the
cases of exclusion to the right of access to
public information must be truly exceptional,
so that the general rule is that of allowing
access to information and refusal being
grounded in the protection of other rights or
interests affected by access.
Therefore, it must be understood that legal
exceptions are to be interpreted restrictively
–strict, in terms of the case of the European
Court of Justice– and therefore, without any
possibility for an indiscriminate or
disproportionate application that reduces or
devoids the right of access of its content.
Along this line of reasoning, it should be stated
that the exceptions to access are only those
established by law, without any extension, by
analogy, to other non-regulated cases. It must
also be added, as indicated under heading 4.2.2
and as stated in the explanatory memorandum
of the Council of Europe Convention on Access
to Official Documents, that the exceptions or
limits to access must refer to the content of the
document and nature of the information; in
other words, they must have an objective base
that justifies them and be proportionate to the
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
purpose of protecting other legitimate rights
or interests.
It must be remembered that the explanatory
memorandum of the Council of Europe
Convention on access to official documents also
states that respecting the spirit of the convention
implies allowing the broadest possible access to
public documentation, and not preventing access
through an incorrect (extensive) application of
the limitations that Article 3 makes it possible
to establish.
The general principle of access to public
information and the strict interpretation of
exceptions has also led to the most advanced
legislation in the protection of the right of
access incorporating instruments to evaluate
in each case if it is necessary to apply the
exception and refuse access, or whether the
right to access should prevail.
One of these instruments is the harm test: the
administration that receives an application
for access that may enter into conflict with a
right or interest protected by an exception to
access must weight the harm that access to
the information could effectively cause. If no
real, or only minor harm is found, access
must be granted despite the exception.
In the same manner, the proportionality
principle aims to modulate the application of
exceptions, so that it is possible to have
partial access to information, if this way the
data used for the exception can be preserved
without completely eliminating the right of
access.
The application of the overriding public
interest principle prevalent in information
disclosure has special significance. This
criterion means that the administration
holding the information when one of the
exceptions outlined in the law occurs it must
be determined whether there is public interest
in disclosure of the information that is of
greater transcendence than public or private
interest that the exception means to protect,
so that, despite the affectation of this interest,
access to the information must be allowed.
Certain legislations, such as that of Slovenia
and the United Kingdom, distinguish between
exceptions to access of absolute and relative
natures, so that the application of the criterion
of overriding public interest would only be
viable in the latter case.
31
In its current version, Regulation 1047/2001, on
the public’s access to the documents of the
European Parliament, Council and Commission,
also takes up the distinction between absolute
and relative exceptions, and the criterion of
overriding public interest.
It should be noted that the Council of Europe
Convention on access to official documents
contains a list of access exceptions that the
states party to the Convention can establish,
but it also stipulates that the exception is not
to be applied when there is a prevalent public
interest in disclosing the information.
The Explanatory Memorandum to the
Convention refers to the application of the
principles of the harm test and the weighting of
public interest in access to information to
evaluate access exceptions.
On the articulation of these two principles, the
Memorandum states that if access to the official
document does not cause any harm to the
interest protected by the exception, access is
not to be limited. On the other hand, if access to
the document could harm a right or interest
protected with an exception, then it is necessary
to determine if there is public interest in the
disclosure of the public information that is
greater than, or overriding, the interest
protected by the exception, so that the harm
that could be caused to this right or interest can
not impede access to it.
The explanatory memorandum of the Council
also indicates that this harm test and a
balancing of interests must be applied in each
individual case in which a possible exception
to access occurs, in the terms in which internal
legislation has established the limitations.
Along these lines, the Convention party states
can establish their own requisites or criteria
for the application of the harm test. These
criteria can take the form of a presumption for
or against information disclosure. For example,
in the case of the exception on protection of
personal data, the legal presumption can range
from establishing that all personal information
affects privacy and causes harm to this right,
to establishing that only the information on
sensitive personal data can be grounds for
exception.
This memorandum also shows that the
application of the harm test is directly linked
with the time that has elapsed, in that, with
regard to certain limitations, the passage of
32 SCOPE AND CONTENT: CATALAN OMBUDSMAN’S CONSIDERATIONS
time can imply that excluding of access to
information no longer has meaning, or that the
harm that disclosure could cause is lessened.
In the same way, the Memorandum makes it
known that the party states to the Convention
can set, by domestic legislation, absolute or
unconditional legal exceptions for the most
sensitive information, so that in such cases, it
would be sufficient to find that the information
affects any absolute exception to refuse the
access application. It must be remembered that
the restrictive or strict application of exceptions
means that the administration must state the
probability –or likelihood– of access generating
effective harm to the good or interest that the
absolute exception aims to protect. In no case
should the application be automatic simply
because the access application affects a
protected area with an absolute exception.
Furthermore, the Memorandum makes it clear
that absolute legal exceptions, in the degree
that they totally exclude access, must be the
minimum possible. Speaking on this at the May
2010 conference, the Slovenian Information
Commissioner said that an element to determine
if a law for access to public information was in
accordance with the democratic parameters of
transparency and accountability was the
number of absolute exceptions established in
the information access law.
In any event, Article 3.3 of the Convention calls
for time limits to access exceptions, so that
applications may never be refused if the legally-
established time limits have been surpassed.
It goes without saying that these criteria for
the application of access exceptions
established in the Council of Europe
convention on access to official information
and legislation of many countries similar to
Spain have yet to be incorporated into Spanish
legislation. In section 2.2 it was stated that a
list of exceptions to access that was too
generic and vague, together with the lack of
instruments to evaluate the cases of conflict
between access and other rights or interests,
was one of the shortcomings affecting the
Spanish and Catalan legislation in force, and
that could turn the exception into the rule,
especially in the event of conflicts between
access and personal data protection.
Therefore, a new regulation of the right of
access is also necessary from this standpoint,
and should include application of these
instruments in terms analogous to
international standards, and pursuant to the
terms of the Council of Europe Convention on
Access to Public Information taken up in this
section in summary form.
The draft bill of the Spanish law on
transparency and citizen access to public
information disseminated by the Ministry of
the Presidency in 2010 established a closed list
of exceptions to the right of access for cases in
which the disclosure of the information could
harm the interests and rights protected with
these exceptions. It also stipulated the
application of the principles of proportionality
and overriding public interest in disclosure
when assessing limitations that was in
accordance, at least partially, with the
parameters previously outlined. The specific
cases listed as exceptions also corresponded
generically, in some cases verbatim, with those
taken up in the Council of Europe Convention
on Access to Public Information. The draft bill
presented in July 2011 distinguishes between
absolute exceptions, including certain vague
descriptions, such as the guarantee of
constitutional rights and relative exceptions,
subject to harm and overriding public interest
tests, and the possibility of partial access.
As for the private bill presented by the Popular
Party in the Spanish Parliament, it also includes
a list of exceptions to be applied with a view to
ensure the protection intended when
establishing them, without prejudice to a higher
interest justifying disclosure of the information.
4.2.6. Conflict of rights and weighting:
access and privacy1
The protection of personal information, or in
other words, the protection of personal privacy,
is the most commonly brandished exemption to
refuse access to information. It is so in our
judiciary system, in which the protection of the
right to informative self-supervision has a
specific and complete regulation, as opposed to
the right of access to information, but it is also
so in other models that do have protective
regulations over the right of access more in
accordance with the foregoing standards and,
therefore, in which legal protection of both
rights is more balanced.
The two personal rights appear to work in
opposite directions: the right of access aims to
guarantee the disclosure of information in the
administrations’ power, and the right of
informative self-supervision aims to give
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
individuals instruments to control the
processing, use and communication of their
personal data by third parties (not only public
administrations). Despite this, it must be clearly
stated that the right of access to public
information and the right to privacy are not two
irreconcilable rights, but rather should also be
seen as two complementary ones meant to
protect personal freedoms before public powers.
Both are related with the obligation of public
authorities to be held accountable.
That said, despite this antagonism being only
apparent, it is true that situations of conflict do
arise in practice, and mechanisms to resolve
them must be articulated, as it is not admissible
to anticipate a prevalence of one right over the
other, but rather a case-by-case evaluation
should be made, considering the weighting
instruments offered by the legal models of our
peer countries indicated hereafter. This
weighting must be conducted applying the
proportionality principle, which guarantees
balance between the two rights.
There are models, such as ours, in which the
rights of access and data protection are
regulated by different laws. This circumstance
can act as a factor of added complexity to
weight the two rights in cases of conflict. In
this regard, data protection laws refer to a
broad concept of personal data which, if applied
directly as an exemption for information
applications would determine a very restrictive
interpretation of the right of access. Incomplete
and vague regulations on the right of access
such as those in force in Spain and Catalonia
definitely lead to the public bodies that receive
an access application conducting an extensive
interpretation of the personal information
exemption as a limit to access.
Therefore, any future law of access to pubic
information should delimit the cases that could
make for access exceptions to protect personal
privacy. In the same turn, lawmakers would
also have to clearly state which definition of
personal data is to be used to determine whether
the access exception is applicable. The FOIA-IRL
excludes certain personal data which could
constitute an exception to the right of access.
For example, with a view to applying this
1
Much of the content of this section is based on an article published by the World Bank Institute in 2011 by
David Bansar, an expert in privacy and freedom of expression who took part in the Conference on Access
to Public Information of May 2010: “The right to information and privacy: balancing rights and managing
conflicts”. Governance Working Paper Series. A pdf version of this document can be consulted at
http://ssrn.com/abstract=1786473.
33
exclusion, it expressly excludes from the
definition of personal information any relative
to the activities of public servants, and the
organizations providing public services.
To undertake comprehensive legislation
adapted to international right to information
standards, it is also important to determine the
suitability of introducing provisions that
facilitate the harmonization of the two laws,
always from a perspective of facilitating the task
of administrative bodies that must weight the
two rights when faced with applications for
access to information containing personal data.
Likewise, consideration must be given to the
formal rank required to introduce any modification
that directly affects Organic Law 15/1999, of
December 13, on personal data protection.
It bears consideration that a legitimate option for
lawmakers is to establish that information on
identifiable persons constitutes an exception to
access, and refer to the data protection law to
define what personal information is. This is the
model approved by several countries of the Anglo-
Saxon realm (Canada and the United Kingdom),
among others. This does not imply that the
exception is absolute in this case, but it does
mean that, in this model, the effort of the body
that must evaluate the access application to
weight both rights and make a balanced and
proportional application becomes especially
determinant, before the lack of legal standards
that help specify the scope of the exception, and
based on a definition of personal data which in
the legislation on privacy protection is
necessarily extensive.
To facilitate the weighting task when the
privacy exemption is articulated according to
this model, in 2008, the Ministry of Justice of
the United Kingdom set a number of parameters
(they are included in the article by David Bansar
mentioned at the beginning of this section) to
determine if the access to public information
containing personal data can be considered
proportionate and appropriate.
Of them, especially significant are those
referring to the application tests of harm and
overriding public interest in disclosure, that
have already identified as two parameters that
34 SCOPE AND CONTENT: CATALAN OMBUDSMAN’S CONSIDERATIONS
should be applicable to all exceptions in access
of a relative nature. As specific criteria to
evaluate the release of information containing
personal data, it must be considered whether the
person whose data is at stake specifically rejected
disclosure, the way in which the information
was obtained, its content and the reasonable
expectations that could have been created at the
time of providing the data with regard to whether
the information would be reserved or accessible
to third parties.
To these parameters, there must be added, as
specific instruments for weighting the right of
access and privacy, the option of anonymyzing
the personal data before disclosing them, or only
allowing partial access.
In any event, these are options that must be
taken under consideration as alternatives before
refusing access in cases in which the
administration that must rule on the access
application determines that the right to privacy
protection must prevail. Therefore, it is not an
alternative to dissemination that must be
automatically applied when the information
contains personal data, but rather, it only comes
into play later in the weighting of access in
specific cases when the conclusion is that access
to personal data is not to be allowed.
It has been previously stated that the public
interest test is not an exclusive parameter of the
privacy protection exception, but it has a special
impact in this realm, especially in cases in
which the information identifies a public servant
or elected official and refers to the exercise of
duties, and the provision of public services, or
has to do with the use of public funds.
In cases such as these, with strong presence of
public interest in disclosure, this circumstance
must be taken especially into account to
determine whether information can be
accessible, although it contains private data, and
dissemination could eventually cause some type
of harm to the person whose records they are. In
other words, evaluation must be carried out on
the relevance of this public interest in disclosure,
in contrast to the type of personal data and the
damage that dissemination could cause. In this
respect, the impact of specific information
applied form the standpoint of supervision over
the exercise of public authority and effective
accountability is a determinant element of the
balance between the right of access and data
protection, and must act as a limit to an
extensive application of the right to privacy as
an exception to access.
Likewise, it should also be remembered that an
access applicant could have a specific interest in
accessing information, often because it is a
requisite, or they believe it is relevant for the
exercise of another right. In these cases, if the
information applicant voluntarily expresses this
motivation, their specific interest in accessing
the information must also be taken into
consideration when weighting the two rights in
conflict.
It should be highlighted that in some models of
access to public information the legislation
establishes in the same regulation that, as a
general rule, the personal identification of the
public servant or elected official who approves a
given decision or intervenes, because of their
duties in a public action, and also the personal
information that refers to the exercise of these
functions, must not be considered information
relative to personal privacy to be preserved in
access by third parties (this is the case of
Ireland, as stated above).
In the case of elected officials and persons
occupying the highest-ranking posts in public
organizations, the scope of personal information
that must be available will usually be broader,
given their more determinant role in the exercise
of public power and decision-making and
therefore, the greater relevance, in general
terms, of the information referring to them,
from the general interest perspective. Obviously,
in these cases, the body receiving the application
can not refuse access on the grounds of the
privacy protection exception, as it has been
expressly excluded by law.
In the case of access to information relative to
public expense, a decision by the European
Ombudsman of July 14, 2008 must be mentioned.
It determined that it was maladministration to
withhold information on the expenses incurred
by European Parliament members (MEP’s),
including their travel and per diem allowances
(case 3643/2005(GK)WP). As it was a case of
apparent conflict between rights of access and
privacy, the European Ombudsman sought the
European Data Protection Supervisor’s opinion,
which was that the public was entitled to
receive information on the conduct of the MEP’s.
In this decision the European Ombudsman
stated that in a transparent, democratic society,
the public had a right to be informed about the
use of public funds entrusted to MEP’s.
Still and all, it must be stated that in the
weighting of public interest in disclosure of data
on public expenditures and the ‒also public‒
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
interest in preserving personal privacy, the
latter concept will have a more relevant impact
when the information refers to medical or social
assistance, as the information could contain
sensitive data on the health of persons or their
family or social situation, that must be preserved,
than when it is a public expenditure related
with the exercise of the duties inherent to
elected officials and public servants, in which
the impact on the realm of personal privacy is
much smaller.
In the Decision of December 8, 2010, the
European Ombudsman stated that there is no
maladministration by the European Parliament
when it refuses an application for the statistics
of MEP absences due to health reasons, as to
prepare them, it would be necessary to process
information of specific MEP’s, and this is a
processing of personal data that can only be
done following strict guidelines. In that case,
the European Ombudsman also held that, in
specific circumstances, the statistics requested
would have allowed the identification of specific
MEP’s (case 2682/2008/(MAD)(TN)ELB).
In keeping with the foregoing considerations,
and with a view to incorporating into our legal
code a regulation on the right of access adapted
to the most advanced international standards,
the regulation would have to establish, with the
maximum possible specificity, the cases (or
criteria by which to determine them) in which
personal information must be excluded from
the right of access.
From this standpoint, and based on the
examples of other aforementioned legislation,
the new regulation on the right of access could
establish for personal data related with a
person’s privacy that exclusion be the general
rule and access, the exception. Access would
require the consent of the affected person or an
overriding public interest in disclosure, which
in this case must be an interest of high relevance
for all society. On the other hand, in the case of
personal data linked to the exercise of public
duties, the general rule should be to allow
access. The regulation should also dictate the
application of overriding public interest and
harm tests, with a view to guaranteeing
accurate and proportionate application of the
rights in conflict.
Still, it should be borne in mind that the
overriding public interest test, despite its
relevance, only provides a parameter or
orientation to weight one and another right in
the cases of conflict, and help set the limits in a
35
given case. The process of applying the
proportionality principle to the rights in conflict,
weighting the public interest in disclosure and
the harm that access would cause the owner of
the data, must be done case by case, and definitely
implies a certain complexity that the law can not
prevent.
That is why the existence of an independent
authority to supervise the application of the
access law, and that can set criteria and parameters
for the weighted application of exceptions, must
be considered necessary to strengthen the right
of access to public information and guarantee
proper application. As for the various options or
models of supervisory authority, reference is to be
made to the content of section 4.2.4 of this report.
Another element that should be borne in mind in
regulating situations of conflict between access
and privacy should take the form of a provision
by which, for a third party to have access to the
information that contains personal data it is not
necessary, as a general rule, to have the consent
of the person whose data they are. If this were the
case, the possibility of access would be exclusively
predicated on the will of the data’s owner, giving
clear superiority to this right, contrary to the
proportionality principle.
This does not mean that the data owner
cannot intervene in the process of weighting
between the two rights. Along these lines, and
as indicated by professor Emilio Guichot, a
speaker at the Conference on access to
Information and Transparency held in May
2010, a hearing for the data owner can be
useful in the process of weighting the two
rights to proportionately gauge the affectation
that access would involve, but it need not
necessarily be a requisite to resolve the access
application when there are elements that make
it possible to properly weight whether to allow
or refuse information access.
Article 6 and 7 of the draft bill of the Ministry
of the Presidency on transparency and citizen
access to public information, from 2009,
specifically regulates the relationship between
public information and personal data protection.
In a positive light, it is to be noted that the
applicable law would be that which regulated
the right of access (unless the applicant for
access is the owner of the personal data) and
sets as a general parameter the access to
information referring to the public body that
requests it, and refusal when the information
contains personal data or that affect people’s
private lives. It also establishes the possibility
36 SCOPE AND CONTENT: CATALAN OMBUDSMAN’S CONSIDERATIONS
for partial access and anonymization of the
information.
As shortcomings of this draft bill, it should be
noted that it does not establish that the decision
must weight the two rights in accordance with
the proportionality principle, the application of
the harm or overriding public interest tests. In
this regard, the application of the principles can
be understood to be supported by the general
regulation of the exceptions in Section 5 of the
draft bill, notwithstanding the fact that it would
have been preferable to indicate it more
specifically.
On the other hand, the last draft bill presented
by the Ministry of the Presidency establishes
evaluation of access to information directly
associated with the organization, operation and
public activity of the subject the application is
addressed to. It also mentions performance of a
weighted analysis, with sufficient grounds,
between both rights, by the body or subject that
must decide on the application, with regard to
the information that contains personal data
that are not qualified as especially protected,
when the disclosure of these data does not
harm the constitutional rights of the person
and, especially, the right to privacy.
As for the private bill on transparency,
information access and good government
presented by the Popular Party in the Spanish
Parliament, it regulates the relationship
between access to information and protection
of personal data in terms very similar to
those of the first ministerial draft bill (article
17 and 18).
 THE RIGHT OF ACCESS TO PUBLIC INFORMATION
5. CONCLUSIONS AND RECOMMENDATIONS
5.1. Conclusions
1. The right of access to public information is
linked to the fundamental right to
participation in public affairs and the freedom
of information, it is a guarantee of free public
opinion, and an intrinsic part of political
pluralism in a democratic state.
2. The right of access to information in the
hands of public administrations has a twofold
dimension, which includes the perspective of
general interest in democratic supervision of
public authorities and the right of private
persons to obtain information that they wish to
know or that specifically affects them.
3. From a general interest perspective, public
information being accessible is a requisite to
make effective the principles of transparency
and accountability, which must govern public
activity, and a necessary step for informed
participation of citizens in public management
and in the administration’s decision-making
processes.
4. The private or individual dimension of the
right of access to public information is
manifested in the possibility for an organization
or citizen to access information they consider
relevant for their interests.
5. Article 105 of the Constitution contains the
mandate for lawmakers to regulate “access by
citizens to the archives and records of the
administration”.
6. The regulation of the rights of access to
public information in the Spanish and Catalan
legal codes is incomplete, is centered on the
realm of administrative procedure, and is
insufficient to guarantee the effectiveness of
this right.
7. Some sectorial rules incorporate more
favorable regulations on the right of access, but
37
regulatory dispersion and the lack of a general
law that regulates this right in a comprehensive
and unified way undermine its effectiveness.
8. There is not a specific procedure that is
agile enough to resolve applications, and the
list of exceptions to access has been made but
without any standard or criteria to resolve
cases of conflict with other rights that would
favor harmonized application. Furthermore,
there is no independent authority as an
additional instrument of protection over the
right of access.
9. A specific law is needed to regulate this
right in terms comparable to those of Spain’s
peer countries and the parameters of the
Council of Europe Convention on Access to
Official Documents, of June 18, 2009.
10. A complete regulation of this right, that
takes into account its dimension as a requisite
for democratic supervision of public authority
and informed participation of citizens, must
also include the obligation to disclose
information of public interest, as a
manifestation of the transparency principle.
An intensive disclosure activity –facilitated by
information and communication technologies–
would reduce the need for express access
applications.
11. A rule adapted to international standards is
a measure necessary to reinforce the right of
access to information, but insufficient if not
accompanied by a change in administrative
culture, so that access to public information is
seen as the general rule, and restriction or
secrecy the justified exception.
5.2. Recommendations
A new regulation on the right of access to
public information, taking into account the
standards established by the Council of Europe
Convention on Access to Official Documents
38 CONCLUSIONS AND RECOMMENDATIONS
and the systems of Spain’s peer countries,
should include the following items:
a) Anyone should be able to apply for access
without needing to accredit any personal
interest or justify their application.
b) Any refusal of access must be justified based
on objective, legally outlined causes.
c) What should be relevant in the application of
the law is that the information refer to public
activity, understood in the broadest sense,
regardless of whether it is held by a public or
private body. It should also include the Justice
administration, and also the public information
from all other constitutional and statutory
bodies, at least as regards the conduct of their
administrative duties.
d) Promotion of an outlook on the right of
access to public information constrained to
final documents is a generic unjustified
restriction of the right. Unfinished or
preparatory information that is of public
interest should not be excluded from access
due to its supportive character, unless it could
somehow harm other rights or interests and
the exclusion is necessary to protect them.
e) The term in which an application must be
decided on should be 15 days, with an option
to extend the period an additional 15 days if
the volume or complexity of the requested
information so justifies it. The silence–
signifies–assent principal must be applied,
with no need for additional or confirmatory
actions.
f) Access to information must be free, although
limited fees are allowable strictly to cover the
cost of making copies. Under no circumstances
may they have a deterrent or restrictive effect.
g) The intervention of an independent authority
for the protection of rights from among those
that already exist would be an instrument to
promote access to information and guarantee
an impartial review of administrative decisions
prior to taking any legal action.
h) The general rule must be to allow access to
information, and refusal should be the
exception. Exclusions to access must be limited
in time, make reference to the content of the
document and be justified by the protection of
other rights or interests affected by access.
i) As they completely exclude access, absolute
legal exceptions must be the minimum
possible. Instruments must be incorporated to
evaluate, case-by-case, whether it is appropriate
to apply the exception and refuse access or
whether the right of access to information
must prevail. Instruments with which to
evaluate applications for access offered by
comparative law and the Council of Europe
Convention on Access to Official Documents
are, fundamentally: the harm principle that
takes into account the passage of time as a
factor limiting harm, and the principles of
proportionality and overriding public interest
in the disclosure of information.
j) If access to public information does not
cause any harm to interests protected by
exceptions, access should not be limited. If
some harm is caused, it must be determined
whether there is public interest in the
disclosure of information that would be
overriding. In this case, the harm that
disclosure could cause to the right protected
by the exception must not impede access.
k) The right of access to information and the
right to privacy are not irreconcilable rights,
but rather must be considered complementary,
with a view to protecting personal freedoms
from public powers, and with the goal for
public authorities to fulfill their accountability
obligation.
l) There must be a delimitation of the cases
that could constitute exceptions for access to
public information to protect personal privacy,
with a specific definition of the personal data
concept, that cannot coincide with the
extensive concept taken up in personal data
protection regulations.
m) The weighting of the right of access and
privacy, and the effective harm that disclosure
of information could cause should not become
an absolute exception when public interest
and access is considered overriding.
n) There must be evaluation of the option to
anonymize personal data or provide partial
access only when it is concluded that the right
to privacy impedes access to information.
Síndic de Greuges de Catalunya
Passeig Lluís Companys, 7
08003 Barcelona
Tel 933 018 075 Fax 933 013 187
sindic@sindic.cat
www.sindic.cat